LIBRARY OF CONGRESS 

019 935 679 3 



Reissued Patents 

Viewed in the light of 

RECENT DECISIONS. 

H. HOT?^SON, Sr. 



JUN" 1 



Copyrighted 1883, 

by 

HO^WSON & SONS. 



^. 






\' 



REISSUES. 

(IN THE LIGHT OF RECENT DECISIONS.) 

Copyrighted 1883 by Howson & Sons. 




^HE most important, and we think most 
salutary changes which have been 
made in patent practice, are, first, 
the virtual abolition of models, a 
subject referred to elsewhere, and, 
second, the more recent change rela- 
ting to Reissued Patents, brought 
about by the decision of the United 
States Supreme Court in the case of 
Miller vs. The Bridgeport Brass Company, the case of 
James vs. Campbell, and other decisions. 

The recent enormous increase in the number of 
applications filed, and number of patents granted, may 
be attributed mainly to these two changes. 

The abolition of an onerous tax imposed by the 
demand for useless models, necessarily stimulated 
invention, and the action of the Supreme Court has 
opened to the ingenious, avenues which had previously 
been closed by monopolies based on Reissued Patents. 
The day has passed for the favorable entertainment, 
by the Courts, of patents expanded by reissue long after 
the original grant ; such patents can no longer be avail- 
able instruments in the hands of speculators for harassing 
manufacturers and patentees. There is no longer any 



hope for the patentee who has failed to secure all that 
he is entitled to, and who has neglected to promptly 
remedy the defects. 

In the case of Miller vs. The Bridgeport Brass 
Company, the Court said : 

** By a curious misapplication of the law (relating to 
reissues), it has come to be principally resorted to for 
the purpose of enlarging and expanding patent claims. 
And the evils which have grown from the practice have 
assumed large proportions. Patents have been so 
expanded and idealized, years after their first issue, that 
hundreds and thousands of mechanics and manufactur- 
ers, who had just reason to suppose that the field of 
action was open, have been obliged to discontinue their 
employments, or to pay an enormous tax for continuing 
them." 

" Now whilst, as before stated, we do not deny that a 
claim may be enlarged in a Reissued Patent, we are of 
opinion that this can only be done when an act al mis- 
take has occurred; — not from a mere error of judgment, 
but a real bona fide mistake, inadvertently committed ; 
such as a court of chancery, in cases within its ordinary 
jurisdiction, would correct. Reissues for the enlarge- 
ment of claims should be the exception and not the 
rule. And when, if a claim is too narrow, that is, if it does 
not contain all that the patentee is entitled to, the defect 
is apparent on the face of the patent, and can be discov- 
ered as soon as that document is taken out of its envelope 
and opened, there can be no valid excuse for delay in 
asking to have it corrected." 

Again the Court said : " These afterthoughts, devel- 
oped by the subsequent course of improvement, and 
intended, by an expansion of claims, to sweep into one 



net all the appliances necessary to monopolize a profit- 
able manufacture, are obnoxious to grave animadversion. 
If a patentee who has no corrections to suggest in his 
specification except to make his claim broader and more 
comprehensive, uses due diligence in returning to the 
Patent Office, and says * I omitted this,' or ' My solicitor 
did not understand that,' his application may be enter- 
tained, and on a proper showing, correction may be made. 
But it must be remembered that the claim of a specific t 
device or combination, and an omission to claim other I 
devices or combinations apparent on the face of the pat- } 
ent, are, in law, a dedication to the public of that which 
is not claimed It is a declaration that that which is 
not claimed is either not the patentee's invention, or, if 
his, he dedicates it to the public." 

In the case of James vs. Campbell, the Court said : 

*'0f course, if by actual inadvertence, accident, or 
mistake, innocently committed, the claim does not fully 
assert or define the patentee's right in the invention 
s^ect^ed m f/ie patent, 3. speedy application for its cor- 
rection, before adverse rights have accrued, may be 
granted, as we have explained in the recent case of 
Miller vs. Bridgeport Brass Company." 

One of the evils due to the unrestricted Reissuing of 
Patents in past years, has been the careless presentation 
and prosecution of applications for patents. 

Facilities for reissuing patents had engendered in 
the minds of inventors a belief that a patent could be 
repaired and re-repaired at any time when it was worth 
while to do so, or when the efforts of others suggested a 
Reissue, and that the style of specification, claims, and 
drawings, was not matter for grave consideration. The 
very man who would measure every word of an agree- 



merit, or other document relating to ordinary property 
or money matters, would be heedless in the criticism 
of papers which defined his patent property, and in a 
great measure determined its value.* 

That this is the case is evidenced by the statement 
published last year, after careful inquiry in the Patent 
Office, that "on an average 14 per cent, of the applica- 
tions were prepared in a masterly manner, 26 per cent. 
were fair to medium, 30 per cent, passable to poor, 
and that the remaining 30 per cent, were very bad or 
butchered." 

Two warnings, which the inventor must heed, are 
given by the above decisions : — 

First, he is taught that he can no longer afford to 
present to the Patent Office clumsy papers prepared by 
incompetents; and that a hasty, impatient prosecution 
of his application, and a failure to insist upon the allow- 
ance of claims to which he is entitled, may be disastrous 
to hisjnterests. 

Second, that the most careful scrutiny of his patent 
should be instituted immediately after the grant, and if 
defects due to inadvertence, accident, or mistake occur, 
that he must seek the prompt remedy suggested by the 
decisions of the United States Supreme Court, 

It should be stated in conclusion, that the Rules of 
the Patent Office relating to Reissues have been altered 
to accord with the above-mentioned decisions. 



*H. Howson on Reissued Patents — A Warning to Inventors. Pub- 
lished by T. and J. W, Johnson & Co. 



LIBRARY OF CONGRESS 



f?l P)19 93a 619 3Ji 



HOWSON & SONS, 
Patent Soliciting and U.S. Court Practice, 

No. 119 South Fourth Street, 
PHILADELPHIA. 

Branch Office : 
No. 915 F STREET, WASHINGTON, D. G. 



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